Judge rips Husted's late change

Calls last-minute ballot ruling unfair

Nov. 15, 2012

Ohio Secretary of State Jon Husted / Columbus Dispatch/Will Figg

Written by

Barry M. Horstman

A federal judge has sharply criticized Ohio Secretary of State Jon Husted’s last-minute change of ballot rules before this month’s election, saying Husted acted in a “fundamentally unfair and constitutionally impermissible” manner.

U.S. District Court Judge Algenon Marbley also ordered Ohio to count any provisional ballots jeopardized by a directive Husted issued the Friday night before Election Day that shifted a key responsibility from poll workers to voters.

“The surreptitious manner in which the secretary went about implementing this last-minute change to the election rules casts serious doubts on his protestations of good faith,” Marbley wrote in his 17-page ruling.

Calling Husted’s action “a rare but serious” violation of state law, Marbley said Husted’s Nov. 2 directive “disenfranchises an unknown but potentially large number of Ohio voters.”

To remedy the situation, Marbley ordered Husted to issue a new directive no later than Friday – the day before counties may begin counting provisional votes as part of their official canvass of the Nov. 6 election.

The latest in the series of legal disputes seen before and after Election 2012 in Ohio stems from how voters’ identification is noted on envelopes containing provisional ballots.

Those ballots are required when questions arise over voters’ eligibility, often because they moved or changed their name without updating their registration.

Ohio law requires poll workers to record the identification – a driver’s license, the last four digits of a Social Security number or other documents – that provisional voters use at the polls.

“At the time that an individual casts a provisional ballot ... the appropriate local election official shall record the type of identification provided,” the law states.

Under earlier federal court rulings, provisional ballots on which poll workers failed to do so or made other errors must be counted by election officials.

Husted’s directive, however, shifted the ID burden to voters, and added: “If the voter did not provide identification on the provisional ballot affirmation ... the (elections) board must reject the provisional ballot.”

That change not only contradicts the passage of state law that “unambiguously tasks poll workers” with recording voters’ ID, Marbley said, but also violates a 2010 federal consent decree governing Ohio’s electoral procedures.

Husted argues that asking voters to check a box on the provisional envelope indicating the specific ID provided could actually reduce the risk of a ballot-disqualifying error by eliminating the process by which voters otherwise would give that information to poll workers, who in turn would record it.

But Marbley said Husted has provided no evidence why such a change “would improve the integrity of the voting system.”

“The General Assembly made the policy judgment to place the duty to record the identification of a provisional voter with a trained election official,” Marbley said. “The secretary may not second-guess that decision.

“If the secretary could arbitrarily shift any duties of an election official to an individual voter, (he) could ensure no error would ever be the fault of a poll worker simply by reassigning all of the poll worker’s duties to the voter.

“This result is not contemplated by Ohio law or permitted by the Constitution.”

Marbley added that he had “grave misgivings” over the irony of Husted altering electoral policy so close to Election Day after Husted had earlier complained that court-ordered changes in October on various facets of the election left him insufficient time to prepare.

“The secretary’s action here is a flagrant violation of a state election law, and it has the result of disenfranchising voters, by rejecting provisional ballots cast in good faith,” Marbley said.

A new Husted directive consistent with Marbley’s ruling will prevent that from happening, the judge concluded.